15 F. 615 -

15 F1d 615

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Case Text

EIGHT HUNDRED AND Fonn'JONE TONS QF IRON ORE.

:

615

5. Although an action in the statecolirts of either or Pennsylvania would be'barred by the limitation expressed statutes (')f thdse:lltates, the admiralty is not bound thereby, and, in ,this case; WIll not follow the perrotl of limitation therein provideda'nd . 6. The drowning complained of was caused by the improper navigation, negligence,and fault of. the said steamer, producing the cbIlision aforesaid, and the libelants are entitled to recover.' ",: ' 7. As theteare no innocent rights to be affected by the present proceeding., and no inconvenience will result to the respondents from the delay attending it, the action, if. not governed by the statutes aforesaid, is not barred by the libelants' laohes.
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Eo die. An appeal wasenterad· to the supreme court of the United States.
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LIIlH1 HUNDRED A.ND FOflTl,ONE 'l'ONS OF IRON ORE.·
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(District . Court, E.D·. , ' . ';';'

York. ",

January 29, 1883.)

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PRACTJCE--SUl'PLEMENTAL LmEL....ExoEPTlONS.

A libel having been fi,led claiming freight and demurrage under a chatterparty, the libelant thereafter filed a supplemental libel, setting up the same and additional facts, and claiming the same freight and demurrage and addle tionaldemurrage, to which libel the claimant excepted on the commenced, Hdd, ground thaJ; it set forth facts occurrip.g after the suit that as it did not appear upon the face of the supplemental libel that any of the facts therein stated occurred subsequent to the commencement 01 the suit, the exceptions must be overruled.
2. SAME-MOTION TO STRIKE OUT SUPPLEMENTAL LmEL.

Where it appeared that the original libel was filed and process issued and served on September 22d, and the supplemental libel, claiming an additional amount, was filed October 4th, before the return of process, rio claimant having appeared, and on October 6th tM qlahlIant appeared and prooured a discharge of the property by depositing in mpney to the amount claimed in the sup. plemental libel,semble, that a motion to strike, out the supplemental libel on the ground that it set forth facts occurring after the, suit was commenced, would be denied, on the groUnd that the claimant would be deprived of no right by allowing it to stand, while to strike it out would increase expense without benefit, a,nd would also deprive the libelant ,of the, security which the claimant had given for the demand made in the' 8upplementallibel. . 'Ast(}'when a proceeding in admiralty is deemed to De commcnced,gUlll1'Il.
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,In A.dmiralty.·

*Reported by R. D. & Wyllys Benedict. '

616

FEDERAL REPORTER.

Ullo et Davison, for libelant· .Benedict, Taft et Benedict, for claimant. BENEDIOT, J. A libel was filed setting up a oharter-party, and cfaiming freight and demurrage to be due thereon. Thereafter a libel supplemental thereto was filed, setting forth the same charterparty counted upon in tho original, and some additional facts, and olaiming the same freig'lt and demurrage claimed in the original libel, and some demurrage. The claimant excepts to the supplemental libel, upon the ground .that the suit'was commenced on the twenty-second day of September 1882, and the supplementallibelstits forth facts occurring subsequent to the commencement of the suit.' This exception has been pressed with earnestness, and the attention of the court called to the impor,talice oian observance of the forms of law. In the light of the arC:lment, it is easy to see that the exceptions should be overruled. In stl'ictness, the exceptions must stand or fall by the averments conta:nod in the pleadings excepted to; and it does not appear upon the faC) of tho supplemental libel that the suit was commenced on the twenty-second: day of September, 1882, When the original libel was filed, and when the supplemental, is not disclosed by the supplementallibeI. If it 'be a legal presumption that the supplemental libel was filed on a day subsequent to tIie day on which the original libel was filed, there is no legal presumption that process had been served, or even issued, before the supplemental libel was filed, and the right of a libelant to supplement his libel as he sees fit, before the issue of the process, will not, I suppose, be denied. But, although a strict observance of the forms of law compels the overruling of the exceptions, I have examined the question that would be presented by a motion to strike out the supplementallibeI. Upon such a motion it would appear that the original libel was filed on September 22, 1882, and that process was on that day issued. The supplemental libel was filed on October 4th, before the return of the process, and before the apro:Lrance of any claimant. On the sixth of October the present eLL l1l1'1nt appeared and filed his claim, and on the same day procured a discharge of the property proceeded against, by depositing in court money to the amount of the claim made in the supplemental libel. Thereafter he filed the present exceptions to the supplementallibol. These facts do not present a case for striking out the supplemental libel, because the claimant will be deprived of no right by allowing the to stand, while

EIGHT HUNDRED AND FORTY-ONE TONS OF IRON OBB.

617

to strike it out will increase expense without benefit, and will also deprive the libelant of the security which the claimant has given for the demand made in the supplemental libel. Undoubtedly the originallibel might have been dismissed on the libelant's motion, and a new suit commenced. To have done so would have cost the libelant' something more, but the rights of the claimant would ha.ve been the same as now. Those rights are not affected by the course pursued. If it be said the libelant may demand marshal's fees incurred before the supplemental libel was :6.led, the answer is that· costs are in the control of the court, and the claimant can be 'fully protected from any increase of liability in the matter of costs arising out of the course pursued. On the other hand, if the supplemental libel be stricken out, and the libelant limited to the facts set forth in the original libel, the libelant loses the security the claim made in the supplemental libel, a security given him by the claimant, .and by means of which the claimant has been able to regain the possession of the propert.r ceeded against. The supplemental libel was :6.led while the proceeded against was in custody of the marshal, as shown by the marshal's return. No person had appeared to claim the same','nor had any change occurred in the ownership of the property, as by the claim filed. The claimant, who owned the property when it was seized and also when it was released from custody, notified by the supplemental libel on file of the existence thereof, and of the, de. mand set forth therein, deposited the amount of that demand as security therefor, and upon such deposit obtained a redelivery ofthaproperty to him. Having given security to pay the demand in the supplemental libel, and removed the property proceeded against, why should he now be permitted to limit the libelant's recovery to the demand set forth in the original libel, and for the rest tum him over to a second recovery agaiust the property, if perchance the same should be found? Forms of procedure are important, but I know no law thatrequires a court of admiralty to carry its reverence of forms so far as, for the sake of mere form and nothing else, to work injustice by striking out this supplemental libel, when full justice can be administered by retaining it. Speaking of forms, the averment of fact contained in ' these e:tceptions, that this suit was commenced on the twenty-second: day of September, recalls the question when a proceeding inadmiraIty is deemed to be commenced. If the procedure of the civil la w be the procedure of the admiralty, it may be that the suit is not deemecl

618.

to be commenced even by the service of the process. According to Law, 367) it would seem. that in Dr. Brown (2 Browu, Civil & strict,ness the suit is not deemed to beco:rnmenced ,qntil the issues are apd the case ready for transmissionfrorp. thep'I'cetor to the judices {Dr trial. See, also, The Martha, Blatchf. & H. 151. B.ut, in the, absence of aidtrom the advocllite upon this point, I forego the inquiry i'tlluded to, and limit my action on' the present occl1sion to overruling exceptions upon the ground that it does not appear upon of the sqp'pleJl).ental libel that any of the facts commencement of th? suit. there stated occurred subsequent to

The burden of proof rests upon a respondent setting up a custom to return and deliver at Chester oil barrels, which, under a bill of lading, stipulating to deliver the same at the port of Philadelphia, had been carried heyond Chester to the city of Philadelphia, andsuchcustom has not been shown to have existed at the date of this contru.ct. Whether such custom now exists,

Admiralty. Libel, answer, and proofs. On August 20, 1881,' 7,061 empty petroleum barrels were shipped on the Sultan, the.bill of lading stipulating that the same should be delivered at the port Philadelphia, ata wharf to be selected by the consignees. The Chester Oil Company was established in March, 1881, and a large proportion of the barrels afterwards cOl1!;ligned to the port of Philadelphia were discharged at Chester. The I1rrived at the city of Philadelphia on the twentieth of September, IS81, and was requested by Witthof, Marsily & Co. to go back and Chester. This the master refused; aridtherenpon discharged at CathraIl's wharf, Philadelphia, and 'filed this libel for $818.76 freight, attaching 3,000 barrols. The respondent claimed that one-third of.' the, oil bus'iness of the port was dorie' at Chester, and it was a<custom: of the port to discharge at that place.: The libelant contended that' a custom off:1ve months was not sufficient to atIectthis contract; that npto at Chester,and of